People v. Thomas

232 A.D.2d 251, 648 N.Y.S.2d 547, 1996 N.Y. App. Div. LEXIS 10305

Opinion

—Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered October 3, 1994, convicting defendant, after a jury trial, of three counts of murder in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 25 years to life (three times), 5 to 15 years and 21/a to 7 years, respectively, unanimously affirmed.

Defendant’s right to confront witnesses was not violated by the reference in the prosecutor’s opening statement to a witness who did not ultimately testify, there being no indication of bad faith. Any prejudice resulting from the reference, or from the testimony of a police witness concerning the nonappearing witness, was minimized by the court’s instructions on what constitutes evidence, by the fact that defendant’s objections to the testimony were sustained (see, People v De Tore, 34 NY2d 199, 207-208, cert denied sub nom. Wedra v New York, 419 US 1025), and by the overwhelming evidence of defendant’s guilt. Defendant’s claim that the evidence was insufficient to prove felony murder is, as he concedes, unpreserved for appellate review (People v Gray, 86 NY2d 10), and, in any event, without merit. We find that the verdict was not against the weight of the evidence. Concur—Murphy, P. J., Rubin, Ross, Williams and Andrias, JJ.